Morris's Appeal , 68 Pa. 16 ( 1871 )

The opinion of the court was delivered,

by Sharswood, J.

In 1774, a number of gentlemen of Philadelphia formed a volunteer company of cavalry, and tendered their services to the Continental Congress. They called themselves “ The Philadelphia Troop of Light Horse.” They served during several years of the war of the Revolution. At the close of the campaign of 1776-7, perhaps the most arduous of the whole contest, General Washington, by a general order after the performance of their tour of duty, discharged them from the service for the time being, and in doing so took occasion to compliment them in high terms for their discipline and bravery. The document is not a letter addressed either to the Troop, or their commander; but just what I have designated it, a “ general order,”-concluding formally, as all such orders do : “ Given at Headquarters at Morris-town, this 23d January 1777.” That this general order should be transmitted to the captain of the Troop, to be read at their head, was in the usual course of military procedure. It would be a very curious question and not easy on principle or authority to determine, in whom the property of the paper vested, when it was so transmitted. It may be that the gentlemen then composing the Troop would be joint owners; and then it would seem to follow, that whoever had possession might hold it as against the other proprietors, but that on his death it would go to the survivors; any one obtaining possession having a right to keep it, until the last survivor, who could make what use he pleased of the document, being accountable to no one. This would be to apply to it the rule of property as to chattels jointly owned. But then came in the Act of Assembly, passed March 31st 1812, 5 Smith 395, which converted all joint tenancies then existing, whether ip lands or chattels, into tenancies in common, and abolished the right of survivorship. It appears, however, very clearly, that from the earliest period, not only the custody and possession, but the property was recognised to be in Samuel Morris, then the captain of the troop. The circumstances plearly evince that this 'was acquiesced in by all the gentlemen interested. Captain Morris resigned his command in 1783. In 1794, John Dunlap was chosen captain. Some time afterwards, within a short period, he had prepared, as it would seem at his own expense, a silver plate, so as to admit a likeness of General Washington, and had engraved on it the words of the general order of discharge, together with the names of the gentlemen members of the Troop at the time it was issued. In a letter to him, without date, Captain Dunlap requests Captain Morris to accept this plate “ as a testimony of merited esteem.” On the reverse of the plate, is also engraved these words: “ As a testimony of attachment to my valued friend, Captain Samuel Morris, and for the better preservation of the certificate from our beloved general, in which the feelings of the gentlemen of the Troop and of myself are interested, I have caused it to be engraven on this plate, of which I ask his acceptance. John Dunlap.” The letter before referred to also states: “A recess is formed on the back of the plate to admit and preserve the original, which should be, as far as in our power, protected from accident or injury.” It is not a subject of contention, and cannot be, that the silver case was presented to, and became the private property of Captain Morris. What could well be more absurd than the idea that the silver case should be owne'd and possessed separate and apart from the paper it was made for the purpose of preserving ? There are no minutes extant of the Troop at that period, but it is not to be supposed for a moment, from the character of the gentlemen and the nature of the transaction, that this thing was done in a corner. It was no doubt known to all the members of 1777, who were then surviving, and met their entire approbation. From that time down to 1823, no question was mooted upon the subject. Captain Morris died in 1812. In 1815, it appears that the corps took the name of the First Troop Philadelphia City Cavalry, in consequence, no doubt, of other similar troops having been formed. It was incorporated by that title by an Act of Assembly, passed April 4th 1863, Pamph. L. 289. Were it at all material, there would perhaps not be much difficulty in tracing and making out the succession of the incorporated body to all the rights of property of the voluntary association, though the name was changed, It is not, however, important. If the property of the paper in question ever was in the association, or if there was ever a trust for them, what was done by them in 1823' put an end to their claim. They then appointed a committee “to search for original documents and property of the Troop,” who reported the facts of the case in regard to this order of discharge, stating that it was in the possession of Luke W. Morris, a son of Captain Morris, and that he considered ’ “ both the silver case and the letter of discharge, as the property of his family.” Upon which report a resolution was adopted by the Troop, that they “ have no claim upon the silver case or the letter of discharge.” Now if they had any title before, here is a clear relinquishment to the family of Captain Morris — a gift, or what is the same thing, a solemn admission of a previous gift. On the other hand, not putting this, which seems to be the most natural, construction upon it, we have here a distinct assertion by Luke W. Morris of his absolute property, with no trust expressed— acquiesced in by the Troop, upon the faith of which he had a fae simile of the order engraved, and a number of copies struck off and presented to them. Surely if it was a deposit or bailment before, to which any trust attached, which would prevent the bar of the Statute of Limitations, such a relation ended at that time. Here was an open, express denial of the right of the plaintiffs, followed by exclusive adverse possession, and full knowledge on the part of the cestuis que trust: Hill on Trustees 264, note. They lie by forty-three years, without instituting any proceedings either at law or in equity, to assert their alleged title, and it would be contrary to all principle and every decided case, to listen to them at so late a day.

Decree reversed, and now it is ordered and decreed that the bill be dismissed with costs.